Supreme Court: Decision still to come on constitutionality
The U.S. Supreme Court ruled Monday that President Trump could enforce part of his travel ban, aimed at nations with overwhelmingly Muslim populations, at least until the court decides in its next term whether the ban is constitutional.
But until then the wording of Monday’s decision generated mostly confusion about who will be permitted to enter the country, who can’t and who decides.
The main subject of uncertainty was a statement by six of the nine justices saying that, while Trump’s executive order is in effect, officials can exclude residents of the targeted nations or refugees if they lack “a bona fide relationship with a person or entity in the United States.”
While allowing portions of the executive order to take effect Thursday, the justices did little to define the “bona fide relationship” that would exempt new arrivals from the travel ban.
Some advocates for im-
migrants and refugees said virtually all would-be entrants have established ties with family members or organizations in the U.S. and would be exempt from the ban. Other advocates said many thousands of refugees would be stranded in hostile surroundings.
The court’s wording is “incredibly vague” and “will cause massive confusion as it is implemented,” said Corinne Duffy of Human Rights First, a nonprofit that filed arguments against Trump’s order.
Justice Clarence Thomas, who argued in dissent that the court should have let the entire executive order take effect, said the court majority set up an “unworkable” standard that would “invite a flood of litigation” in the same courts that had ruled Trump’s order illegal.
Monday’s order set aside rulings by federal appeals courts in Richmond, Va., and San Francisco blocking Trump’s March 6 executive order, a revision of an earlier version that was also barred by federal courts.
When they return for a new term in October, the justices will be tasked with weighing the president’s broad power over immigration and national security against arguments that Trump targeted Muslims, in violation of the constitutional ban on religious discrimination, and provided no evidence to justify a temporary but blanket exclusion of more than 180 million residents of six nations.
With Thomas and Justices Samuel Alito and Neil Gorsuch indicating support for Trump’s order Monday, the deciding votes most likely will belong to Chief Justice John Roberts and Justice Anthony Kennedy, whose rumored retirement on the last day of the court’s 2016-17 term failed to materialize.
But it’s not clear how much will be left to decide when the justices hear the case at the start of their 2017-18 term. By then, Trump’s 90-day ban on U.S. entry from six nations will have expired, and his 120-day prohibition on all U.S. admission of refugees, those fleeing violence and hardship in their homelands, will be nearly finished as well.
While those clocks are running, according to the executive order, the Trump administration will be tightening rules for screening immigrants and refugees from countries that are potential sources of terrorism.
The justices said Monday they “fully expect” the administration to complete its review promptly and notify foreign governments, within 90 days, of any changes they must make in their own procedures. The court also asked for arguments from both sides in the case on whether the travel ban had actually expired on June 14 — 90 days after Trump first announced it — even though lower courts had kept it from taking effect.
It’s an open question, said Pratheepan Gulasekaram, a professor of immigration law at Santa Clara University, whether “this case is still a live case.”
Trump’s order would ban U.S. entry for 90 days of anyone from Iran, Libya, Somalia, Sudan, Syria or Yemen. Populations of those nations are between 90 and 99 percent Muslim.
Anyone holding a U.S. visa would be exempt from the order, and consular officers would be permitted to issue individual exemptions in hardship cases. U.S. consulates revoked between 60,000 and 100,000 visas of would-be entrants under Trump’s first order before courts blocked it.
In addition to the accompanying 120-day ban on refugees from any country, Trump proposed to reduce overall U.S. refugee admissions from 110,000, the number approved by then-President Barack Obama, to 50,000 for the fiscal year that ends Sept. 30. Refugee advocates said the Trump administration has slowed its processing of refugees, limiting admissions to 46,000 so far for the 12 months that started last October.
A federal appeals court in Richmond, Va., ruled May 31 that the ban on entry from the targeted nations appeared to be an unconstitutional act of religious discrimination. The court cited Trump’s advocacy as a presidential candidate for a ban on Muslim immigration, his selection of the targeted nations, and comments by the president and his advisers suggesting his executive order was a thinly disguised Muslim ban.
On June 12, the Ninth U.S. Circuit Court of Appeals in San Francisco blocked both the travel ban and the refugee exclusion, but with a different rationale: that federal immigration law bans discrimination based on national origin, and that Trump had presented no evidence that all residents of the six nations, or all refugees, presented threats to national security.
Trump — who had publicly belittled his March 6 revision as a “watered-down” version of his earlier, broader order — hailed the Supreme Court’s action Monday as a “clear victory for our national security.”
But some immigrant and refugee groups said it would have little immediate impact because of the exception for those with “bona fide relationships.”
“Almost anyone coming to the United States who has a visa or is a refugee” has established ties with a U.S. resident or organization, said Becca Heller, director of the International Refugee Assistance Program, a plaintiff in one of the court cases. She said refugees already approved for admission usually have relationships with families or with nonprofit resettlement organizations.
The only classification that appears to be subject to the 90-day ban, under Monday’s order, are “people applying for visas as tourists who don’t know anyone in the U.S.,” said Karen Tumlin, legal director of the National Immigration Law Center.
But an attorney on the same side in the case, Hardy Vieux of Human Rights First, said the loosely defined order “will leave refugees stranded in difficult and dangerous situations abroad.”
Mark Hetfield, president of another plaintiffs’ organization, HIAS, formerly the Hebrew Immigrant Aid Society, said the order “will have a tragic toll on those who fled for their lives and played by our rules to find refuge in the United States.”
The first interpretations of the court’s order and its exemptions will come from Trump’s Homeland Security Department when the order takes effect Thursday.
If the department starts using the order to exclude large numbers of migrants and refugees, said Omar Jadwat, an American Civil Liberties Union attorney in the case, “we’ll be there” for an immediate legal challenge.
The Supreme Court cases are Trump vs. International Refugee Assistance Project, 16-1436, and Trump vs. Hawaii, 16-1540.
“Almost anyone coming to the United States who has a visa or is a refugee” has established ties with a U.S. resident or organization. Becca Heller, International Refugee Assistance Program director